WILDERS, MARLBORO AND THE INTERNATIONAL SOCIALISTS (DUTCH PORTRAIT LAW)

Wilders, Marlboro and the International Socialists (Dutch portrait law) Opinion by Maarten Haak in MarketingTribune of 26 February 2008 So much attention for the posters of the International Socialists: the heading of Dutch politician Geert Wilders on a Marlboro package. “EXTREMIST”- “Causes serious damage”. Wilders’ position already received attention in the prior issue of MarketingTribune, but what about the position of the owner of the trade mark Marlboro: did Philip Morris have good reasons to take action? Mr. Wilders loved the attention. This enabled him to criticize the police, that had seazed ed the posters as being offensive for Mr. Wilders. But Mr. Wilders had another opinion (and this time I agreed): the freedom of speech of the International Socialists must put more weight in the scale in this event; Mr. Wilders could not (and did not want to) take action against this slogan. Neither could he have stopped the use of his head by calling on his portrait rights: everybody knew that Mr. Wilders did not take part in this action. And “high trees catch much wind”, is a well known Dutch saying that is also applied in court as regards the freedom of speech. A 'reasonable interest' to oppose against this use was therefore lacking for Mr. Wilders. And what about the trade mark owner? Philip Morris had all the good reasons to be “not amused”. Don’t nag too much, could be a first reply - doesn't everybody know that this is a joke? Yet such a joke too could damage the repute or the distinctiveness of a trade mark. Would you smoke more cigarettes if you think of Mr. Wilders when buying a package of cigarettes, or would you rather buy another brand? By referring to Marlboro the action also received extra attention. In such event a trade mark owner is (and must be) able to stop such use. However, sometimes it is better not to spend additional attention to the use of your trade mark by a third party, and thus to remain inactive. We all remember the mistake by the Dutch retailer HEMA, that aggressively attacked the exhibition ‘EL HEMA” in the Amsterdam Museum of Modern Art, consisting of the muslim version of the typical HEMA style. Only two days later HEMA made a 180 degrees turn under strong media pressure, and joined the board of this exhibition, in order to reduce the damage caused by its own action. In fact, I doubted whether HEMA was protected by trade mark law after all. In my view, the exhibition was not damaging the HEMA trade mark, neither did the exhibition have an unjustified advantage by referring to the HEMA trade mark. Also Philip Morris had to make a difficult choice: to take action or not? They do have some experience in that, as the looks of the Marlboro package are used more often in actions, on shirts and in cartoons. Last year, the Flemish newspaper De Standaard placed a cartoon of a bloody Marlboro package, after a school student has stabbed a companion to death because the latter refused to provide a cigarette. Philip Morris immediately wrote a letter to De Standaard, and this time also the International Socialists received an angry letter. Philip Morris could have had an additional reason to act promptly. The definition of 'tobacco advertising' in the Dutch Tobacco Act is so extremely wide, that this message by the International Socialists could well be considered as a forbidden tobacco advertising, even though it was not coming from the trade mark owner itself. In fact, any economical act that could indirectly increase the fame of the tobacco trade mark, is seen as forbidden advertising. Also advertising that is aimed to circumvent the advertising ban by using a Marlboro feature (or look-a-like) falls within the scope to the tobacco ban. And that could be very expensive for Philip Morris. So Philip Morris always barks. And in this event biting was not needed. The International Socialists have backed off already. They probably even keep the profits made with selling these posters.

Hoogenraad & Haak advocaten

office
Emerald House
Jozef Israëlskade 48-G
Amsterdam, the Netherlands
t +31 (0)20 - 305 3066
www.hoogenhaak.nl

post
PO Box 76780
1070 KB Amsterdam
e info@hoogenhaak.nl
f +31 (0)20 - 305 3069
chamber of commerce 34314579

WILDERS, MARLBORO AND THE INTERNATIONAL SOCIALISTS (DUTCH PORTRAIT LAW)